Abstract
Social media arose as a way to communicate with friends, but it evolved to become a significant medium through which individuals exercise their right to free speech. At the same time, social media has raised a variety of challenges for fundamental rights. Whereas national and supranational legislators play a key role in terms of governing social media, court decisions are a test-bed for the protection of fundamental rights in a social media context. This article seeks to shed light on the social media jurisprudence of constitutional and supreme courts in a selected set of EU Member States. It examines in particular the contribution of national judiciaries to the protection of freedom of expression online and its balancing with other rights and interests in a social media setting. The focus is on cases that concern political speech, cases that examine the application of safeguards for the press on social media, and cases that reflect upon the impact of social media on legacy media regulation, that is, regulation for the mass media from the pre-digital age. The analysis identifies key trends in domestic judicial reasoning and shows the importance of fundamental rights as an interpretative tool for judicial decision-making on social media standards.
Keywords
1. Introduction
Social media has become the means of communication of our time. Having emerged in the second half of the 2000s, it has spread considerably in recent years, becoming the means through which online users interact, express their opinions, get information and even find jobs. Social media has been said to break down the barriers between traditionally public and private spheres of communication, 1 promoting the exercise of human rights and fundamental freedoms, in particular free speech and the freedom to exchange views and ideas. 2 It has also been praised for facilitating debate on matters of public interest, 3 for enhancing the potential for individual participation in political, social and cultural life 4 and for fulfilling, on certain occasions, the role of a social ‘watchdog’. 5
Indisputably, although social media arose as a way to communicate with a more or less closed network of relatives and ‘friends’, it evolved to become a significant means by which individuals express their views and opinions, and receive and impart information. 6 Social media thus contributes to the exercise and enjoyment of freedom of expression. In doing so, it also supports the realization of a broad range of other human rights. This is because freedom of expression is as much a right on its own accord as it is a ‘facilitator’ of other rights, 7 namely civil and political rights (such as the right to freedom of assembly and association or the right to freedom of thought, conscience and religion), and economic, social and cultural rights.
The capacity of social media to facilitate free speech and to enhance individuals’ exercise of a wider set of rights should not conceal the fact that its rise has simultaneously created substantial challenges for fundamental rights. 8 Social media activity has spurred the spread of harassment, hatred and incitement to violence on such grounds as gender, race and religion. It has also fed illegal content, and it has nurtured tensions between freedom of expression and the protection of other rights, such as privacy, data protection rights, the right to human dignity, the right to one’s reputation, intellectual property rights, and so on. Moreover, it has been broadly recognized that social media breeds disinformation. 9
This article seeks to shed light on the social media case law of a selected set of EU Member States. Considering the importance of social media for the exercise of the right to freedom of expression, but also the challenges social media poses to the enjoyment of fundamental rights, the analysis explores the contribution of national judiciaries to the protection of free speech and its balance with other rights and interests in a social media setting. The article examines in particular the incorporation of a free speech component in the social media case law of supreme and constitutional courts. Overall, it shows that although the fundamental rights dimension is not prevalent in the cases reviewed, free speech safeguards form the core of judicial analysis when social media disputes receive consideration from a fundamental rights perspective.
The article is structured as follows. Section 2 situates national judiciaries within a wide group of actors that seek to regulate social media conduct. Sections 3 and 4 give an overview respectively of the court rulings under examination and of the legal sources that determine their legal background from a fundamental rights perspective. The analysis then moves in section 5 to judicial reasoning on freedom of expression. The final section offers some concluding remarks on judicial decision-making on social media standards and the contribution of fundamental rights in this regard.
2. Social media regulation and the role of courts in standard-setting
Social media is subject to several regulatory levels and processes, and collective and individualized rules that seek to govern its behaviour and the use of its services. This is primarily due to a broad array of actors that are involved in rule-making and standard-setting on a wide range of topics, from illegal content and illegal activity online, to personal data protection, the protection of minors, consumer protection and the ever-increasing role of algorithmic curation of content provision through recommender systems. 10
International and regional organizations in particular play a key role in the development of rules that address social media either in a direct or in an indirect manner. To illustrate, provisions that are relevant for social media are contained in EU legislation on audiovisual media services, 11 in EU legislation on intellectual property rights, 12 as well as in EU legislation on electronic commerce, the overarching legal framework at the EU level on issues of liability for hosting illegal content online. 13 Relevant EU rules demonstrate a fragmented legal framework and go hand in hand with other EU rules that seek to respond to the challenge of illegal online content and are therefore relevant for social media. They include the Directive to combat the sexual abuse and sexual exploitation of children and child pornography, 14 the Terrorism Directive 15 and Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. 16 EU institutions have sought to complement these regulatory instruments with co-regulatory and self-regulatory measures on issues such as hate speech, disinformation and minors’ protection, among others. 17
The Council of Europe (CoE) has been active in standard-setting too, particularly with a view to ensuring respect for human rights in the digital environment. The ensuing recommendations and declarations are of a non-binding nature and some of them directly address social media. 18 The 2012 Recommendation of the CoE’s Committee of Ministers (CoM) on the protection of human rights with regard to social networking services stresses the role of social networks as human rights enablers. 19 It also acknowledges that human rights can be threatened on social networks. It therefore recommends the development of coherent strategies, by party members, in consultation with the private sector and civil society, to protect and promote respect for human rights. Similar calls are made in the 2018 CoM Recommendation on the roles and responsibilities of internet intermediaries. 20 The recommendation concentrates on ‘a wide, diverse and rapidly evolving range of players’, which ‘facilitate interactions on the internet’, encompassing social networking sites. It invites party members to take all necessary measures to ensure inter alia that internet intermediaries fulfil their responsibilities to respect human rights.
Legislators at the national level have also pondered social media regulation – a process that is very much ongoing 21 and encounters difficulties given the global nature of the Internet, rapid technological change, and constantly evolving practices of communication and access to news and information. Concurrently, major social networking platforms have sought to develop self-regulatory rules, usually in the form of codes of conduct or own terms of service on issues such as content removal policies and data processing practices. 22
In this context, which is characterized by the ongoing efforts of a plurality of actors to regulate social media conduct, fragmented rules and thus far limited social media-specific legislation, courts can have a strong bearing on the definition of the legal standards that apply to social media. Naturally, when called upon to adjudicate disputes, including social media-related disputes, judges must first determine the law that is applicable to the dispute. However, in the course of determining the applicable law, judges do not always merely declare what the law says; sometimes they ‘create’ understandings of it. 23 General provisions, legislative amendments, technological innovation, social change and the interplay among different legal sources at different levels may require judges to choose between different interpretations of the same statute.
In social media cases in particular, judges may be particularly inclined to revisit the interpretation of long-established norms in order to bring social media within their purview and solve the dispute before them, given the absence of a comprehensive legal framework on social media as such. 24 They also enjoy the potential to interpret any newly established rules in particular directions and accordingly, shape their regulatory effects for social media.
During the last few years European courts, namely the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), have been increasingly confronted with social media disputes. 25 National courts have similarly ruled on disputes concerning social media but relevant case law has been under-researched from a comparative perspective. Seeking to fill this gap, the analysis below focuses on how fundamental rights, particularly safeguards for free speech, have been interpreted and perhaps reconsidered by domestic courts in social media cases. Attention is given to the social media jurisprudence of constitutional and supreme courts. Whereas the former often interpret the rights and freedoms entrenched in national constitutions and states’ international obligations, the latter may engage in fundamental rights analysis when deciding cases at last resort.
3. The judgments under study
Our sample covers the case law of supreme and constitutional courts in Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia and Slovenia delivered between 1 January 2012 and 31 May 2018, amounting to 147 cases. Country selection reflects a variety of EU Member States in terms of legal systems and judicial structures for constitutional review and the enforcement of fundamental rights. Moreover, the list of countries chosen covers western European countries, which in principle enjoy established fundamental rights policies, and states from central and eastern Europe, whose transition to democratic rule has been closely associated with processes of bolstering human rights protection and promotion.
Our list of cases includes cases on social media, such as Facebook, Twitter, YouTube and Instagram, and cases on blogs, chat rooms online forums, messaging applications, and so on. The latter come within the scope of our study because they display similar characteristics to social media. Connective communication, namely communication that is driven primarily by the need to connect and relate to others, interactivity and creative participation through user-generated content are some of these characteristics. Our sample also includes cases on legacy media (namely the press, radio and television) operating online and news portals, provided that the judgments identified concern activities with similar features to social media or compare legacy media to social media. To give an example, cases on allegedly defamatory comments posted by online newspaper users in connection to published articles fall within the scope of our study. Cases on allegedly defamatory news articles published by news portals do not.
Particularly as regards the judicial systems under study, the countries reviewed do not all have constitutional courts, nor are competences regarding areas of law allocated to supreme courts in the same manner. For instance, Bulgaria, Croatia, Italy, Portugal, Slovenia and Slovakia benefit from the existence of a constitutional court. In Greece, there is no constitutional court as such. Under Article 93(4) of the Greek Constitution, all domestic courts are bound to refrain from applying legislation whose content is contrary to the Constitution. This shared, diffused control of constitutionality 26 means that the entire Greek judiciary shall assure that domestic laws conform to constitutional human rights requirements. 27 Concerning competences, the Supreme Court and the Supreme Administrative Court (or Council of State) feature prominently among the highest judicial authorities in Bulgaria, Greece, Italy and Slovenia. They have jurisdiction in civil and criminal cases, and administrative cases respectively. The Supreme Court of the Slovak Republic, the Supreme Court of the Republic of Croatia and the Supreme Court of the Republic of Latvia rule on civil, criminal and administrative matters. Additional specificities can be detected, such as the availability of procedures to guarantee the unity of jurisprudence. In Italy for instance, any court when deciding a dispute can raise a question to the Grand Chamber of the Supreme Court in order to receive clarification on a certain point of law or, in case of a pre-existing conflicting interpretation of the law, to solve such a conflict. The decision of the Grand Chamber acts as an authoritative precedent to be followed not only by the court that raises the question, but by all courts.
4. Legal sources and fundamental rights
When reviewing the legal sources that define the legal background of the adjudicated cases, we see that one in five cases makes reference to provisions of fundamental rights. This shows that social media cases trigger questions from a fundamental rights perspective. Unsurprisingly, constitutional fundamental rights provisions are the first point of reference for national courts, followed by a combination of constitutional provisions and the provisions of the European Convention on Human Rights (ECHR). Within our sample, national court decisions rarely referred to the provisions of the EU Charter of Fundamental Rights (Charter).
Limited use of the Charter may stem from the fact that for the Charter to apply in a concrete case, the case must fall within the scope of EU law. National judges’ ‘preference’ for the ECHR may also be related to the fact that the ECHR has a longer history of interaction with national constitutions, as an older instrument than the Charter, and that the ECHR provisions have been increasingly intepreted by the ECtHR in social media-related cases. Against the background of Article 53 of the Charter which states that the Charter shall not ‘be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized…by international agreements to which the Union or all the Member States are party, including the [ECHR], and by the Member States’ constitutions’, 28 reference to the Charter might also be perceived as mere repetition of constitutional and ECHR provisions, duplicating the fundamental rights reasoning developed by the national court on their basis. Moreover, after Melloni, 29 where the CJEU held that Member States enjoy limited space to rely on a higher domestic standard of fundamental rights protection in situations that fall within the scope of the Charter by virtue of the principle of primacy of EU law, 30 national courts might generally be discouraged from integrating the Charter in their decision-making for fear of having to disapply the national constitutional standard.
5. Judicial reasoning and freedom of expression
Overall, judicial reasoning on fundamemental rights is rather modest in the selected case law on social media. The percentage of higher court cases involving fundamental rights reasoning is 15%: out of 147 cases, 22 cases had a fundamental rights dimension. Notably, 83% of these cases (18 cases, of which three constitutional court cases and 15 supreme court cases) raised issues concerning the protection of freedom of expression. This indicates that free speech is central to judicial analysis when fundamental rights form part of the courts’ social media rulings. This is so especially in cases concerned with the publication of defamatory, degrading or insulting content in social media, blogs, chat rooms, and so on. From the cases that endorsed a free speech perspective, mention should be made of those that dealt specifically with political speech. A limited number of cases considered the impact of social media on legacy media regulation. Other cases addressed the freedom of the press, contemplating the replication of safeguards for the press in a social media environment. Relevant case law is discussed below in paragraphs A, B and C, respectively.
A. Political speech online
Certain cases in our sample focused on matters such as the role and regulation of social media in relation to political speech. These cases provide insight into the challenges that may emerge when domestic rules, originally designed for legacy media (such as pre-election political campaigning prohibitions), extend to the Internet without taking into account the specificities and complexities of the online environment. They also demonstrate the courts’ willingness to give consideration to the evolution of the technological context and new practices of communication when interpreting well-established rules, such as those concerning parliamentary immunities for instance.
For example, in case 2016-09-01 of 18 January 2017, decided by the Constitutional Court of Latvia, twenty parliamentarians questioned the constitutionality of Article 32 of the Latvian pre-election campaigning law, with the argument that it violated Article 100 of the Latvian Constitution on freedom of speech. Pursuant to Article 32 of the pre-election campaigning law, on the day of elections and the day before, any political campaigning on radio, television, the written press and the Internet was prohibited. The deputies argued that the reference to the Internet guaranteed the prohibition set forth in national legislation a wide application: it could cover political campaigning through online private communication and also via social media. The extension of the pre-election campaigning prohibition, originally devised for the traditional media, to social media and other forms of online communication was claimed to place a disproportionate restriction on the right to freedom of expression. Changes brought to domestic legislation led the Constitutional Court to terminate proceedings. As the new legislation held that the Internet facet of the pre-election campaigning prohibition was confined to political campaigning through services that require payment, the Constitutional Court held that the legal amendments enacted restricted the scope of the prohibition and there was accordingly no need to continue proceedings.
Decision 313/2013 of 17 December 2013 by the Italian Constitutional Court revolved around parliamentarians’ exemption from liability for defamatory speech in political speech. According to Article 68(1) of the Italian Constitution, ‘[m]embers of Parliament cannot be held accountable for the opinions expressed or votes cast in the performance of their function’. The case originated in online allegedly defamatory statements made by a member of the Italian Senate against the President of the Italian Republic. The case was lodged with the Constitutional Court by the Tribunal of Rome in reference to a resolution adopted by the Senate, according to which the statements made (for which criminal proceedings were pending) concerned opinions expressed by a member of parliament in the exercise of his functions and therefore fell within the scope of Article 68(1) of the Italian Constitution. By adopting such a resolution, the Tribunal of Rome argued, the Senate had exceeded its powers. The Senate was only competent to verify the existence of a functional nexus between the statements made and the exercise of parliamentary duties; in the case at hand, it had delved into the actual substance of the statements made and had examined whether or not they were offensive – an assessment incumbent on courts.
Having clarified that the views expressed by the parliamentarian were not associated with parliamentary activity, the Constitutional Court examined the argument put forward by the Senate that the functional nexus criterion should be reconsidered in light of technological developments that had diversified the means of political communication. The Senate argued in particular that the functional nexus requirement should cover all instances in which parliamentarians reached out to citizens via blogs and social media to express their political views or engage in political criticism. The Constitutional Court acknowledged the contribution of social media to political speech but refused to confirm the existence of a functional nexus between opinions expressed and parliamentary functions, whenever a parliamentarian engaged in some sort of political debate online. Political activity through social media, blogs, and so on, the Constitutional Court stressed, did not necessarily coincide with the exercise of parliamentary functions. Such a broad interpretation would go beyond the carefully circumscribed rule of Article 68(1) Const.
To corroborate its reasoning, the Constitutional Court drew on the ECtHR’s jurisprudence. In particular, it referred to the ECtHR rulings in Cordova v. Italy and CGIL and Cofferati v. Italy to confirm that parliamentary immunity cannot include activities which are not related to the performance of parliamentarian functions. 31 In Cordova v. Italy, the ECtHR had accepted that states can afford immunity to members of parliament, noting that parliamentary immunity should not ‘in principle be regarded as imposing a disproportionate restriction on the right of access to a court’, 32 embodied in Article 6 ECHR on the right to a fair trial. However, parliamentary immunity should not be granted for statements that appeared to have been made in the context of a personal quarrel. 33 To hold otherwise would amount to restricting in a manner incompatible with Article 6(1) ECHR the right of individuals to have access to a court whenever allegedly defamatory statements were made by a parliamentarian. 34 Similar conclusions were reached in CGIL and Cofferati v. Italy. Against this background, the Constitutional Court affirmed that the statements of a politician that were expressed with no connection to the exercise of parliamentary duties should be subject to judicial proceedings in order to safeguard the right of access to justice.
B. The impact of social media on legacy media standards
Our case sample includes a limited number of cases that reflect upon the effects of the advent of social media on legacy media standards from a free speech perspective. Relevant cases originate from Slovakia and examine whether or not media plurality, that is, the existence of a diversified media landscape with a broad range of media service providers operating alongside an unlimited number of information sources, including social media, justifies changes in the interpretation of the rules applied to TV broadcasting. Thus, although relevant cases do not include social media as a party to the dispute, nor does social media constitute the actual subject matter of the dispute, the judiciary refers to social media and the changes it has brought to the media ecosystem to examine whether or not changes in rule interpretation are required.
Decision II. ÚS 307/2014-45 of 18 December 2014 by the Slovak Constitutional Court arose from judicial review proceedings concerning a decision of the Slovak media regulator. The Council for Broadcasting and Retransmission found a TV broadcaster to have violated the requirements for objective and impartial news reporting set out in national legislation. The appeal of the broadcaster was dismissed in all instances, but it was upheld by the Constitutional Court. According to the Constitutional Court, domestic rules for impartial reporting in news and current affairs programmes had been adopted as part of the steps taken in the 1990s to support the transition of the country to a free and democratic society and to thwart the manipulation of the information offered by just one public TV and radio provider. Nowadays, the domestic media landscape is substantially different: it is characterized by an abundance of information sources, the operation of a range of private media and the expansion of social media. The rules on impartiality amounted to a restriction on TV operators’ free speech. Such restrictions could be justified only in case of conflict with the protection of the rights and freedoms of others, state security, public order and the protection of public health and morals, in accordance with Article 26(4) of the Slovak Constitution on the permissible restrictions to freedom of expression (and also the concomitant provision of the ECHR, Article 10(2) ECHR). The media regulator should exercise its decision-making powers with caution to avoid any punitive effect on broadcasters, with due attention to media plurality considerations, and certainly within the constitutional limits of Article 26(4) Const.
In short, the restriction on the TV operator’s freedom of expression on grounds of impartiality was unlawful for the Constitutional Court. It did not come within the scope of Article 26(4) of the Slovak Constitution, and importantly, it did not derive from the corollary right to freedom of expression, the right to receive information because this right did not equal a right to receive impartial or objective information. 35 The Constitutional Court emphasized instead that freedom of expression and the right to information entailed a positive obligation on states to ensure pluralist sources of information in society, for citizens in a democracy should be able to choose from a variety of information offerings to form their opinion. To reinforce its argument, the Constitutional Court drew attention to the ECtHR’s decision in Cetin and Others v. Turkey, 36 which was about a ban on the distribution of a daily newspaper in a region of Turkey. Having reiterated that the press plays an essential role in a democratic society, the ECtHR had ruled in this case that citizens, as passive recipients of information, should be allowed to receive a variety of information and views to shape their opinion. 37
The decision of the Constitutional Court shows that social media may have become a relevant factor to consider when regulating TV news reporting, suggesting less severe regulation with respect to impartiality standards. 38 This impacts the enforcement powers of the broadcasting regulator: any sanctions imposed for violations of impartiality requirements are unlawful unless they come within the scope of the constitutionally recognized grounds for restrictions on free speech. According to the Constitutional Court, this would be the case for instance with the presentation of one-sided, extreme opinions and ideas that constitute a threat to the rights and freedoms of others by intentionally denying human rights and freedoms, by denying or endorsing the Holocaust and the crimes of political regimes that promote religious extremism and terrorism, by supporting totalitarian state establishment and propaganda, by promoting national, racial or ethnic hatred, and so on. 39 In such instances, the media regulator should intervene and enforce impartiality standards, especially if the dissemination of the views at hand were to take place over a longer period of time and therefore enjoy more opportunities to influence citizens, their political behaviour and political life in a democracy, more broadly. 40 Citizens, as recipients of information, should not be seen as depending on a one-off news programme or report for forming their opinion. 41
Interestingly, the ‘media plurality’ argument that the Constitutional Court advanced to justify its reasoning also received consideration in another social media-related case ruled by the Slovak judiciary. In decision 5Sž/11/2015 of 23 March 2017, the Slovak Supreme Court referred explicitly to the 2014 ruling of the Constitutional Court in response to a relevant pleading by a TV broadcaster. The case concerned an appeal against a decision of the Council for Broadcasting and Retransmission that had found the TV broadcaster to have violated domestic rules on labelling requirements for the protection of minors. The Supreme Court reflected on the ‘media plurality’ line of reasoning of the Slovak Constitutional Court, which was put forward by the TV broadcaster to challenge the proportionality of the interference with its freedom of expression. However, it concluded that labelling requirements imposed on TV broadcasters for the protection of minors remained legitimate. In particular, the Supreme Court underlined the role of TV broadcasting regulation for protecting the moral development of minors and rejected the claim of the TV operator that media plurality and in particular, the advent of the Internet and social media had raised doubts over the pertinence of labelling requirements for audiovisual content. The fact that no labelling legislation had been adopted for social media, or the press and radio for that matter, was irrelevant. The Supreme Court drew upon both Article 26 Const. and Article 10 ECHR on free speech to declare that the right to freedom of expression was not absolute: domestic labelling requirements imposed on broadcasters constituted a legitimate limitation on the exercise of free speech for the purposes of protecting the moral development of minors and they were necessary and proportional to the objective pursued.
C. The definition of the press vis-à-vis social media
A number of cases in our sample, all ruled by the Italian Supreme Court, 42 examined whether or not social media, blogs, chat rooms, and so on could qualify as the press. This would allow them to come within the scope of specific constitutional guarantees, namely the constitutional prohibition of seizure. The factual circumstances of the cases reviewed were similar. An injunction for a webpage (or website) blackout had been issued on the basis of claims about allegedly defamatory content posted online by bloggers or journalists. This had subsequently triggered an appeal before the Supreme Court with the argument that Article 21 of the Italian Constitution, which prohibits the seizure of the press, had been breached.
In its jurisprudence, the Supreme Court drew a distinction between the press and social media. Decision 31022/2015 in particular, delivered by the Plenary Chamber of the Supreme Court, set guidelines for the interpretation of Article 21 of the Italian Constitution vis-à-vis the online press and social media. The Supreme Court held that the online press could benefit from the constitutional guarantees that are applicable to the printed press, if it has the same structure and characteristics of the printed press. Social media, as well as blogs, online forums, mailing lists, newsletters, newsgroups, and so on could not take advantage of relevant provisions because they did not fall within the concept of the press. 43 The Supreme Court discussed one after the other the specific features of social networks, blogs and other online forums, describing the elements that distinguish them from the press. It pointed in particular to the fact that they do not provide editorial control of the sources of the content uploaded online and that they do not benefit from an organizational structure that is able to carry out editorial control.
In an earlier decision, namely decision 11895/2013, where the Supreme Court similarly established that blogs do not enjoy the constitutional guarantees of the press, it proceeded to offer guidance on the proportionality of the remedy of seizure in case of defamation. The Supreme Court acknowledged that the seizure of a blog substantially limits freedom of expression and therefore suggested a ‘reconciliation of conflicting fundamental interests’. 44 Seizure could be legitimately imposed as a precautionary measure only in case of fumus commissi delicti and periculum in mora, 45 that is, when necessary because there was a credible case for the claim of seizure, based on an assessment of the facts at issue as crimes or offences, subject to criminal law, and an imminent well-founded risk that pending the decision on the merits, the right which the interim measure sought to safeguard could be irreparably harmed. On the basis of such considerations, the court concluded that seizure should be limited to the specific webpage or post containing the impugned statement; it should not apply to entire websites, unless these were used as a means of illicit behaviour per se.
The distinction between social media and legacy media is an issue that has captured the attention of national courts. Legacy media, especially the press, enjoy a set of privileges that commonly derive from national constitutional provisions and such privileges have also been confirmed by the European courts, in particular the ECtHR. 46 The ECtHR has inferred from Article 10 ECHR a number of press rights, in recognition of the essential role of the press in democratic systems. Through its case law, the Italian Supreme Court has sought to clarify the constitutive elements of the press and determine what new media is and how it is demarcated vis-à-vis the press. Other rulings within our sample have also sought to juxtapose the press vis-à-vis the Internet and other online means of communication. 47 The Italian Supreme Court has done so with due note taken of relevant constitutional provisions and free speech safeguards whilst giving consideration to ECtHR case law on the role of the press as a watchdog for democracy. 48 This shows its eagerness to enrich its reasoning with a fundamental rights component and position it within the broader European multi-level system of fundamental rights protection. Decision 11895/2013 is actually one of the few cases in our sample where reference was also made to the Charter, 49 though mention of it had admittedly no bearing on judicial stance and the assessment of the dispute. The Italian Supreme Court merely mentioned Article 11 of the Charter (together with Article 10 ECHR) when affirming that freedom of expression enshrined in Article 21 Const. also enjoys protection under supranational sources.
6. Conclusion
Social media entered national judicial arenas relatively quickly. From the 2010s onwards, social media case law has grown significantly, with cases progressively reaching the national higher courts. The ground-breaking impact that social media has had on people’s lives by revolutionizing communication practices has not been mirrored in the court rooms. In many cases with a social media dimension, judges refrained from specifically addressing social media and its characteristics. The number of cases where social media attracted thorough analysis in its own right is rather limited. However, in a significant number of cases, national courts brought social media within the scope of generic, non-social-media-specific rules (or media-specific rules for that matter) in order to solve the dispute before them. Domestic rules, ranging from the rules on defamation and insult to the rules on incitement to hatred, misleading advertising, work contract termination and even parliamentary immunities, were applied and interpreted in social media cases. Other cases dealt with whether or not rules concerning legacy media should apply in the case of social media or be interpreted less strictly due to the emergence of the latter. Relevant case law confirms the important role of courts in terms of defining the legal standards applicable to social media - and arguably the side-effects of social media on the rules that govern legacy media.
In view of both the opportunities and the challenges that social media has created for the exercise of fundamental rights, one would have expected that the fundamental rights dimension would have been prominent in the adjudication of the cases under study. Overall, however, it is relatively poor. Only in few cases were social media disputes approached from a fundamental rights perspective. When judges accommodated a fundamental rights component in their reasoning, they did so mostly from a free speech standpoint. In relevant cases, the judiciary was faced with questions concerning matters such as the privileges of political speech 50 and the restrictions upon it, 51 the applicability of constitutional safeguards enshrined for the press to social media, 52 and the interpretation of standards for TV broadcasting in the wake of social media and an evolved media ecosystem. 53 Free speech safeguards, laid down in domestic constitutions and supranational instruments, particularly the ECHR, were interpreted with due attention to the new technological and communication context, making clear that fundamental rights sources are ‘living instruments’ that can be construed in the light of present day conditions. Finally, what also derives from the analysis is that in the cases reviewed, fundamental rights have meaningfully assisted judges in the interpretation of both well-established non-social-media-specific rules and in the interpretation of legacy media standards. This reflects the usefulness of fundamental rights as an interpretative tool for judicial decision-making in social media cases.
Supplemental Material
Supplemental Material, Main.document - Social media before domestic courts in Europe: An analysis of free speech cases
Supplemental Material, Main.document for Social media before domestic courts in Europe: An analysis of free speech cases by Evangelia Psychogiopoulou and Federica Casarosa in Maastricht Journal of European and Comparative Law
Footnotes
Acknowledgements
Warm thanks to Dr Anna Kandyla for establishing a dataset of national court rulings incorporating fundamental rights reasoning, the national experts in the countries under examination for identifying social media case law and the organizers of the NONA-EU workshop ‘Digitalisation, Ethics and EU Fundamental Rights’ (University of Maastricht, 9-10 January 2020) where a draft of this article was presented.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research leading to these results received funding from the European Union's Horizon 2020 Programme (grant agreement H2020-ICT-2016-2 No. 762128).
Notes
Supplementary Material
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